Whitting v Poeche
[2001] NSWSC 653
•3 August 2001
CITATION: Whitting v Poeche & Anor [2001] NSWSC 653 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20200/94 HEARING DATE(S): 26 July 2001 JUDGMENT DATE:
3 August 2001PARTIES :
Madonna Joan Whitting
(Plaintiff)Hans Poeche
SRA of NSW
(First Defendant)
(Second Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr C M Simpson
Mr P Blackett SC
(Plaintiff)
(Second Defendant)SOLICITORS: Koffels
Holman Webb
(Plaintiff)
(Second Defendant)CATCHWORDS: Two motions - interrogatories - amended defence LEGISLATION CITED: Supreme Court Rules
Evidence Act
Firearms and Dangerous Weapons Act 1973CASES CITED: State of Queensland & Anor v J L Holdings Pty Limited (1996-97) 189 CLR 146 DECISION: (1) The second defendant has leave to file and serve the amended defence within 48 hours; (2) The plaintiff's application to administer interrogatories to the second defendant is refused; (3) The second defendant is to pay the costs thrown away the the amendment, otherwise costs are costs in the cause.
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THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
FRIDAY, 3 AUGUST 2001
JUDGMENT (Two motions; interrogatories;20200/94 - MADONNA JOAN WHITTING v HANS POECHE
& ANOR
amended defence)
1 MASTER: By notice of motion filed 4 June 2001 the second defendant seeks firstly an order that the amended statement of claim be dismissed for want of prosecution pursuant to Part 33 r 6 of the Supreme Court Rules (SCR); secondly, that the plaintiff pay the second defendant’s costs accrued in these proceedings on an indemnity basis; thirdly, that the plaintiff’s motion filed 1 June 2001 in respect of the administration of interrogatories be dismissed for failure to comply with the timetable entered by consent following the first final conference on 26 October 2000 before Registrar Jupp where the plaintiff was to file any motion for leave to administer interrogatories by 30 November 2000, and failure to comply with the order of Kirby J that the plaintiff file a motion by 25 May 2001 regarding any unanswered interrogatories; fourthly, that the second defendant have leave to file a further amended notice of grounds of defence to the amended statement of claim; and fifthly, that the plaintiff provide all outstanding particulars within 14 days. The second defendant relied on three affidavits of Natasha Zair Miller sworn 12 June 2001, 21 June 2001 and 11 July 2001. The defendant did not address on the issue of want of prosecution. In any event, although this matter falls well short of travelling expeditiously through the case management process, it cannot be said that there has been an inordinate and contumelious delay in the plaintiff’s camp.
2 By notice of motion filed 1 June 2001 the plaintiff seeks an order that the second defendant serve within seven (7) days on the plaintiff a verified statement in answer to interrogatories forwarded under cover of letter dated 3 May 2001. The plaintiff relied on an affidavit of Bill Cortese sworn 11 July 2001. Leave is granted to extend time within which to bring the notice of motion. This matter is listed for hearing on 24 September 2001 for five days.
3 The plaintiff is Madonna Joan Whitting. The first defendant is Hans Poeche and the second defendant the State Rail Authority of New South Wales. The statement of claim alleges that at about 7.00 pm on 18 January 1988 the plaintiff and the first defendant were present in a house at Redfern when the first defendant assaulted and caused grievous bodily harm to the plaintiff by producing a firearm, pointing that firearm at the plaintiff, discharging that firearm, thereby causing the bullet to strike the plaintiff in the region of the right groin. Witness statements suggest that the first defendant mistook the plaintiff to be his ex-girlfriend. The first defendant has not played any active role in these proceedings.
4 It is alleged that second defendant permitted and/or required the first defendant to take the firearm home with him after the cessation of his duties and keep it in his home. It is alleged that the first defendant was the second defendant’s agent or alternatively the second defendant is liable as a principal. Particulars of negligence plead are that the second defendant firstly, failed to institute a safe system of work and safety practices in relation to the use of firearms by its servants; secondly, failed to provide proper training and education in relation to the use of firearms by its servants; thirdly, failed to retain possession of firearms and ammunition issued to servants when those servants were not on duty; fourthly, failed to properly educate and test its servant in relation to the use of firearm; fifthly, failed to take into account properly or at all the dangers of allowing its servants to store issued firearms and ammunition at home; sixthly, failed to carry out any or any proper psychological testing of servants in relation to the possession of and use of firearms; seventhly, failed to take heed of the dangers to the general public of the misuse of firearms and ammunition stored in the homes of its servants; and eighthly failed to take heed of the dangers to the general public of the misuse of alcohol by its servants who have firearms and ammunition of the second defendant stored in their homes.
Amended defence
5 The plaintiff submitted that leave to include paragraphs 14 to 17 of the amended defence should be refused on the basis that the plaintiff would suffer prejudice that this prejudice could not be cured by a costs order. In the High Court decision of State of Queensland & Anor v J L Holdings Pty Limited (1996-97) 189 CLR 146 the trial judge refused to allow a defence to be amended.
6 Kirby J stated at 171:
- “Courts are entitled to react unfavourably to repeated default on behalf of a litigant whose conduct has the effect of frustrating a proper timetable fixed for the trial. Justice will not necessarily require that a party should have multiple opportunities to plead and present its case. A court must accord justice to the particular litigant. But it must also maintain its responsible use of scarce public resources and consider, in a general way, the impact which its orders have on other litigants and on the public generally.”
7 The majority view (Dawson, Gaudron and McHugh JJ at 152) stated:
- “Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”
8 The defendant has produced the plaintiff’s personal file and the training manuals on subpoena. The SRA TIB was disbanded in 1988.
Paragraphs 14 to 17 of the proposed amended defence
9 Paragraphs 14 to 17 of the proposed amended defence are novel propositions. They provide a complete defence if successful. They plead:
“14. Further, and in answer to the whole of the plaintiff’s claim, the second defendant says that at the time of the events and shortly prior to and up until the time of the shooting, on the evening of 18 January 1988, the plaintiff and the first defendant were inhaling, or ingesting a prohibited drug under section 10 of the Drug Misuse and Trafficking Act (the Act) and further had in their possession an item of equipment, namely a bong, used for the administration of a prohibited drug, namely marijuana.
- 15. In the circumstances, the drug-taking was engaged in jointly by the plaintiff and the first defendant and/or materially contributed to the circumstances whereby it is alleged the plaintiff was shot by the first defendant.
- 16. In the premises the second defendant says that it owed the plaintiff no duty or alternatively there was no proximity between the second defendant and the plaintiff which gave rise to a duty of care on its part.
- 17. Alternatively, in answer to the whole of the Amended Statement of Claim, the plaintiff and the first defendant were engaged in a joint illegal enterprise, namely the possession and use of a prohibited substance under the Act in circumstances where the shooting of the plaintiff was occasioned by conduct on the part of the first defendant at a time when both he and the plaintiff were affected by the said drug, namely marijuana, either alone or in combination with alcohol.”
10 The defendant submitted that although the pleading of joint illegal enterprise is a new allegation the factual allegations were already pleaded as particulars of contributory negligence. On 6 May 2000 two statements were served on the plaintiff, namely, those of Charlotte Maria Arvidsson and Asa Kristina Melin who were both residents of Sweden. One of the witnesses appears to have remained in Australia. They were in the house at the time of the shooting. Their statements record that the plaintiff and first defendant were smoking marijuana from a bong. The defendants have notified the plaintiff that pursuant to s 63 (maybe its s 64) of the Evidence Act they wish to tender these statements. The second defendant’s counsel gave an undertaking to the court that if these witnesses are available they will be made available for cross examination.
11 It is my view that in the exercise of my discretion, justice is best served if the amendments to the defence are permitted. It is a matter for the trial judge (or master) as to whether the statements should be admitted into evidence in the event that the witnesses are unavailable - see s 135 of the Evidence Act. The events that give rise to this unusual defence have been known to the parties for some time. The second defendant is granted leave to file and serve the amended defence within 48 hours. The second defendant is to pay the costs thrown away by the amendments.
Interrogatories
12 Interrogatories have to be considered necessary. The test is that the parties seeking to interrogate can satisfy the court that it is reasonably necessary for disposing fairly of the matter after taking into account the interests of the parties. Normally interrogatories are not available in personal injury matters (Part 24 r 3 SCR). However, this case is unusual. Despite case management, the parties decided to serve expert’s reports very late. It is because of the contents of the defendant’s expert’s report that the plaintiff seeks answers to interrogatories.
13 On 20 March 2001 the SRA served their expert’s report in which Mr Whalley expressed the view that the SRA’s practice of requiring TIB officers to travel to and from work in full uniform and carrying their service revolver was in line with the law enforcement community standards and the general security industry at that time. According to Mr Whalley this is further strengthened by the fact that the officers would usually travel to and from work via (free) public transport and were infact therefore on duty whilst travelling and could be called upon to act in their capacity as officers of the SRA as set out in the SRA TIB standing orders. This view is at odds with the view expressed by the plaintiff’s expert, Mr Planinic of Star Services Pty Limited in his report dated 23 October 2000. He opined that the SRA breached the Firearms and Dangerous Weapons Act 1973. Mr Planinic also refers to the Standing Order and Instruction Book Section 15. This will be a hotly contested matter at trial.
14 The interrogatories asked for what was as at 18 January 1988:
“(a) The policy of the second defendant in regard to Transit police in taking their issued firearms home?
(b) What instruction was given to the first defendant in regard to taking his firearm home?
(c) Who gave that instruction?
(d) What was the content of the instruction/s?
(e) When was that instruction given?
(f) Was the instruction oral or in writing?
(g) If in writing, identify the writing.
(h) Were officers taking the weapons out, required to sign a register?
(j) If the answer to (i) is in the affirmative:(i) Had a register been signed by the first defendant in respect of the weapon referred to in the statement of claim?
(ii) If not signed, why not?(i) When was it signed?
- (h) What if any instruction was given about:
- (i) Safe storage of weapons;
- (iii) Safe handling of weapons at home;
- (i) If the answer to (h) is in the affirmative, then:
- (i) Was it oral or written?
- (ii) If in writing, identify the writing.
- (j) Who provided such instruction?
- (k) When was that instruction provided?
- (l) What, if any, steps were taken to ensure that the first defendant:
- (i) Complied with any requirements for signing out weapons;
- (ii) Any requirements for the safe storage of weapons;
- (iii) Any requirements for the safe handling of weapons whilst outside working hours; …”
15 The interrogatories also asks whether there was an assessment of the first defendant undertaken prior to this incident and if so what was the nature of the assessment. The plaintiff’s counsel submitted that the rules provided that if after having made reasonable enquiries, the information cannot be ascertained, this can be stipulated in the answers.
16 It is my view that it is too onerous at this late stage for the second defendant to be required to locate an employee of a disbanded group and ask them what oral instructions and the like were given to an employee some 13 years ago. To date the plaintiff has been able to adequately prepare her case and has served an expert’s report. After taking the interests of the parties into account, it is my view that it is not necessary for fairly disposing of the matter that the plaintiff be permitted to administer these interrogatories. The plaintiff’s application to administer interrogatories is refused.
17 Costs are discretionary. As previously stated the second defendant should pay the costs thrown away by the amendments to the defence otherwise costs are to be costs in the cause.
18 The orders I make are:
(1) The second defendant has leave to file and serve the amended defence within 48 hours.
(3) The second defendant is to pay the costs thrown away by the amendment, otherwise costs are costs in the cause.(2) The plaintiff’s application to administer interrogatories to the second defendant is refused.
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